A Durable Power of Attorney (DPOA) allows someone you choose (an “agent”) to make certain decisions for you or act on your behalf, even if you become incapacitated.
DPOAs are critical documents for estate planning. They ensure that someone you trust will care for your personal and financial affairs or make healthcare decisions if you cannot manage them yourself.
Life is unpredictable; you never know when illness or injury may leave you helpless.
Durable Power of Attorney Forms – State-Specific
- Alabama
- Alaska
- Arizona
- Arkansas
- California
- Colorado
- Connecticut
- Delaware
- District of Columbia
- Florida
- Georgia
- Hawaii
- Idaho
- Illinois
- Indiana
- Iowa
- Kansas
- Kentucky
- Louisiana
- Maine
- Maryland
- Massachusetts
- Michigan
- Minnesota
- Mississippi
- Missouri
- Montana
- Nebraska
- Nevada
- New Hampshire
- New Jersey
- New Mexico
- New York
- North Carolina
- North Dakota
- Ohio
- Oklahoma
- Oregon
- Pennsylvania
- Rhode Island
- South Carolina
- South Dakota
- Tennessee
- Texas
- Utah
- Vermont
- Virginia
- Washington
- West Virginia
- Wisconsin
- Wyoming
What is a Durable Power of Attorney (DPOA)?
A durable power of attorney is a document you can create, giving another individual the power to act in your place and manage your financial, business, legal, or medical affairs if you cannot do so.
With a durable power of attorney, the person granting or giving the power is called the “principal.” The person receiving the power to act is called the “attorney-in-fact” or “agent.”
A durable power of attorney is adequate when you choose when it’s signed or upon your incapacitation. Most significantly, it remains in effect even if you are incapacitated.
The power ends when you pass away or revoke or under the circumstances outlined in the document.
Durable Power of Attorney vs. Power of Attorney
The difference between a Durable Power of Attorney and a Power of Attorney is that the former remains in effect even if you become incapacitated, while the latter does not.
- A durable power of attorney allows your agent to decide on your behalf even if you become incapacitated. For example, your agent can continue (or start) acting on your behalf if you’re diagnosed with dementia.
- A non-durable power of attorney is no longer adequate if you become mentally incapacitated. For instance, if you have dementia, your agent will lose decision-making power.
The main difference between a durable power of attorney and an ordinary power of attorney is that the former remains effective even if you become mentally incompetent, while the latter is only valid if you’re mentally competent.
This means that if you have a standard (non-durable) power of attorney and your mental capacity declines to a point where you are deemed mentally incompetent, a power of attorney expires. Your agent can no longer make decisions for you.
A durable power of attorney is your best bet if you need someone to make decisions for you in the long run.
But if you need someone to sign documents on your behalf for a specific transaction because you don’t want to or cannot appear in person, a non-durable power of attorney is more advisable.
What Rights Does a Durable Power of Attorney Have?
The rights your attorney-in-fact has under a durable power of attorney can vary, depending on your goals.
Manage Finances
You can give the attorney-in-fact the power to manage your finances, including your bank accounts, investments, real estate, and other property.
Make Medical Decisions
You can also give the attorney-in-fact the power to manage your medical decisions. Finally, you can give the attorney-in-fact power to manage both aspects.
Broad or Limited Powers
You can also give the attorney-in-fact broad or limited powers by restricting certain powers.
Types of Durable Power of Attorneys
There are two main types of durable power of attorney – general and medical. We provide samples of each below.
How to Get a Durable Power of Attorney
Here is everything you need to know to make your durable power of attorney.
Step 1 – Designate Your Agent(s)
Your agent can be a trusted family member, a close friend, or an attorney—basically, anyone you know and trust that will be responsible and act in your best interest.
They will have access to your financial information and can make medical decisions on your behalf.
You can name one or more individuals as agents, which can cause delays if the two agents must act jointly but cannot reach a consensus.
It’s also a good idea to designate successor or backup agents if the primary agent cannot act.
Step 2 – Choose What You Authorize Your Agent to Do
Determine and list the specific areas you want to give your agent authority.
For the medical power of attorney, you might also want to think about what’s in your best interests, the treatment or medical care you want to receive, and the medical records you want to share with your agent.
Step 3 – Decide Power of Attorney Type
You can choose more than one power of attorney type, depending on your needs. In general, a medical power of attorney and a durable general power of attorney are your best bets if you want to enable someone to make medical and financial decisions for you.
At this point, you also want to choose how to draft the form.
Here are your options:
- template from a state agency
- attorney in estate planning and elder law
- online service
>> MORE: 4 Common Problems after Deciding on Power of Attorney
Step 4 – Draft Your Power of Attorney Form
Once you’ve chosen your agent, considering what they are authorized to do and how you will draft the durable power of attorney, it’s time to complete the form accordingly.
If you plan to use generic forms with prewritten clauses, ensure you agree with them before you sign your document.
Consider when you want the durable power of attorney to become effective.
In many cases, the DPOA becomes effective once the principal signs the document, but you can also decide you want the DPOA to become effective at a later date or upon your mental incapacitation.
Remember to ensure you include language in the durable power of attorney that clearly states your intentions that a power of attorney survives your mental incapacitation.
Step 5 – Check Signature and Notary Requirements in Your State
Make sure the form complies with your state’s laws.
To make it legally binding, most states require durable power of attorney forms to be signed before a licensed notary public, and some require two witnesses.
Step 6 – Keep a Copy of the Power of Attorney
A durable power of attorney must not be filed with a court or government office to be valid.
However, you must keep a copy of the document with your other estate planning documents and give another copy to your agent or agents.
It’s also a good idea to share the durable power of attorney with stakeholders like your bank or doctor’s office.
Step 7 – Update the Document As Needed
If your needs and situation change, make sure they are reflected in a power of attorney. It is difficult to override a durable power of attorney after you’ve become incapacitated and will require court proceedings.
Use our document builder to quickly and easily create a DPOA and update your form.
Power of Attorney FAQs
When does a Durable Power of Attorney come into effect?
In making a durable power of attorney, you can set the time when it becomes effective. Thus, if you only wish the durable power of attorney to come into effect if you become incapacitated, you can stipulate that in the document itself.
When does a Durable Power of Attorney end?
You can revoke a durable power of attorney at any time if you are mentally sound simply by advising the attorney-in-fact of the matter. Some states have specific requirements for revoking a durable power of attorney. A court can also terminate a durable power of attorney if it finds that the attorney-in-fact is not acting in the best interests of the principal. Also, a durable power of attorney will end at the principal’s death if the document specifies it has an expiration date. A Durable POA form will only expire if: Keep in mind you can’t revoke it if you become incapacitated.
When should I use a Durable Power of Attorney?
A durable power of attorney allows the trusted individuals you appoint to make decisions for you when you cannot do so. A durable power of attorney can help keep your affairs in order if you have been diagnosed with a severe or debilitating sickness. Even if you are in good health, a durable power of attorney can help manage your affairs and simplify medical decisions in the event of a catastrophe or accident, leaving you unable to make decisions. Or in the event you are traveling or living overseas long-term, employed in a high-risk job, or a member of the armed forces deployed overseas. Finally, if you are not married but have a partner, a durable power of attorney can give that individual the same powers of a spouse, enabling them to manage a property and make medical decisions. You should use a DPOA if you’re: Without this document, you may have to pursue court-appointed guardianship of an elderly parent or loved one that becomes incapacitated.
Can I appoint more than one agent?
Yes, you can appoint more than one agent in your durable power of attorney as a co-agent. You can also appoint successor agents if the original agent or agents cannot serve or can no longer fulfill their duties. In addition, you could create several powers of attorney, each dealing with a specific aspect of your life and appointing a different attorney-in-fact for each. As a practical matter, that arrangement would be cumbersome. Ultimately, you should find family members, friends, or trustworthy individuals whose judgment you can rely upon to fill this role. Some experts recommend more than one agent in case one agent is unavailable, or you need people with expertise in different areas. Several methods allow you to do this:
Is my agent legally liable for what he or she does?
Generally, an agent under a durable power of attorney is not legally liable for the principal’s debts. However, one needs to pay special attention when signing documents on behalf of the principal—agents should sign in a representative capacity on the principal’s behalf to avoid personal liability for debt or other financial affairs. One common way to sign in a representative capacity is by adding P.O.A. after the signature. Like any other principal-agent relationship, the agent or attorney-in-fact must always act according to the instructions received in a power of attorney. The agent must also generally act in the best interests of the principal. This is known legally as a “fiduciary” relationship. If the agent fails to follow instructions or does not act in the principal’s best interests, a court may find the agent legally liable for any misdeeds.
Does a Durable Power of Attorney need to be notarized, witnessed, or recorded?
Each state has different rules for creating a valid durable power of attorney. A durable power of attorney must be notarized and/or witnessed in most states. In some states, any document purporting to affect real estate ownership must be recorded with the local property office. If the attorney-in-fact acts for you in any real estate transaction, any deed, mortgage, or another real estate instrument should note that fact clearly in the text.
When does a durable power of attorney expire?
As long as you are mentally sound, you can end a durable power of attorney anytime. In many states, you can verbally revoke a durable power of attorney by telling the attorney-in-fact you no longer wish them to act on your behalf. In any event, you can also revoke a durable power of attorney in writing. If you are not of sound mind, a court can terminate a durable power of attorney if it finds that the attorney-in-fact is not acting according to the instructions in a power of attorney or the best interests of the principal.